Scope of this Guide

1. This guide summarises the major legislative provisions and leading authorities relating to the sentencing of federal offenders in Australia.

2. “Federal offender” is defined by the Crimes Act 1914 (Cth) as a person convicted of a federal offence, that is, an offence against a law of the Commonwealth.(1) The term is generally used in this guide in a wider sense, to include a person who has pleaded guilty to, or has been found guilty of, an offence against a law of the Commonwealth, whether or not the court has proceeded to conviction. The wider usage is necessary because of the availability of sentencing options and ancillary orders which do not involve a conviction. Where conviction (rather than merely a finding of guilt) is a precondition of an order, specific reference is made in this guide to that requirement.

3. This guide also describes some circumstances in which a court trying an offence against a law of the Commonwealth may deal with a person otherwise than by sentencing – for example following a finding that the person is unfit to be tried.

4. The guide focuses on the law applicable throughout Australia. That body of law is complemented by particular State or Territory laws which are applied by Commonwealth statutes to the sentencing of a federal offender in that State or Territory. For example, s.20AB of the Crimes Act 1914 picks up specified State and Territory sentencing options and applies them to the sentencing of a federal offender in the relevant State or Territory. Some references are made (often by way of examples) to aspects of applied State or Territory laws, including their interaction with Commonwealth law, but they do not purport to be comprehensive.

5. This guide does not deal with punishments for contempt of court (other than where the contempt constitutes an offence against a law of the Commonwealth).(2) Nor does it deal with civil penalty regimes, such as those under the Corporations Act 2001 (Cth) or the Competition and Consumer Act 2010 (Cth).

6. Other valuable resources in relation to the sentencing of federal offenders include:

• the 2006 report by the Australian Law Reform Commission on the sentencing of federal offenders(3)
• the Commonwealth Sentencing Database(4)
• Judicial Commission of New South Wales, Sentencing Bench Book(5)
• the textbook, Fox & Freiberg’s Sentencing: State and Federal Law in Victoria (published by Thomson Reuters)

Some of these resources deal with sentencing principles applicable to individual Commonwealth offences, which are beyond the scope of this guide.

7. This guide reflects the law as at 1 March 2018.

Notes

1 : See Crimes Act 1914 (Cth), s 16(1). In some circumstances, the trial of a person for an offence against State or Territory law is an exercise of federal jurisdiction. An example is the prosecution by a State of a person who is ordinarily resident in another State. The trial of such a matter involves the exercise of the “federal diversity jurisdiction” under s 75(iv) of the Constitution; the court hearing the proceeding is exercising federal jurisdiction, vested in a State court by s 39(2) of the Judiciary Act 1903 (Cth). However the exercise of federal diversity jurisdiction does not affect the character of the offence; the offence is not thereby converted into an offence against a law of the Commonwealth: see Rizeq v R [2017] HCA 23.

2 : A conviction for contempt of the Court of a State or Territory is not (usually) a conviction for an offence against a law of the Commonwealth, even when the contempt arises from the Court’s exercise of federal jurisdiction. There are two reasons for this. First, in punishing for contempt, a State court is exercising State jurisdiction, even if the contempt arises in relation to the exercise of federal jurisdiction: see R v B [1972] WAR 129, in Re Colina; Ex parte Torney (1999) 200 CLR 386, Pattison (Trustees) in the matter of Bell (Bankrupt) v Bell [2007] FCA 137 and DPP v Haunga [2001] VSCA 73; [2001] 4 VR 285 (special leave to appeal to the High Court was granted on 13 September 2002 but the appeal was not pursued). Second, although contempt of court is, historically, a common law misdemeanour capable of being punished upon indictment or presentment, it has long been the custom of superior courts to invoke the Court's power to punish contempts by use of a summary procedure civil in character: Rich v Attorney-General [1999] VSCA 14; (1999) 103 A Crim R 261, [4]. A person punished under such a procedure is not thereby found guilty of, or convicted of, “an offence”.

3 : Australian Law Reform Commission, Same Crime, Same Time: Sentencing of Federal Offenders (ALRC 103, 2006).

4 : A collaboration between the National Judicial College, the NSW Judicial Commission and the CDPP (which provides the sentencing data).

5 : https://www.judcom.nsw.gov.au/publications/benchbks/sentencing/sentencing_commonwealth_offenders.html

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